An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1360


Filed: 7 October 2003


v .                         Pender County
                            No. 01 CVS 00774

    Appeal by plaintiff from judgment entered 15 July 2002 by Judge W. Allen Cobb, Jr., in Pender County Superior Court. Heard in the Court of Appeals 19 August 2003.

    DurretteBradshaw P.L.C., by Douglas Scott and John C. Warley, for plaintiff-appellant.

    Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven C. Lawrence, for defendant-appellee.

    CALABRIA, Judge.

    Carolina Telephone and Telegraph Company (“CT&T”) appeals the trial court's granting of a summary judgment motion by Industrial Power & Lighting, Inc. (“IPL”) on CT&T's claim for damages to underground utilities. Because the trial court prematurely granted summary judgment despite the existence of genuine issues of material fact, we reverse.
    On or about 3 October 1998, an automobile accident damaged a telephone pole located along Honeycutt Road on the Fort Bragg Military Reservation (“Ft. Bragg”). Although the pole had not fallen, it was continuing to crack and presented the risk thatpower lines would fall across Honeycutt Road. Larry R. Horrell (“Horrell”), president of IPL, was notified of the accident by the maintenance supervisor at Ft. Bragg and immediately responded. Horrell participated in replacing the pole immediately adjacent to the damaged pole and personally operated the auger, an instrument used to dig the hole for the replacement pole. Horrell admitted the auger damaged what appeared to be one wire within an underground conduit, but he also stated CT&T's workers arrived after his use of the auger and damaged a substantial portion of underground cable with a backhoe.
    On 26 September 2001, CT&T filed suit against IPL seeking monetary damages in the amount of $31,071.73 for damage to their underground utilities, asserting IPL was negligent and had violated provisions of the Underground Damage Prevention Act (the “UDPA”). N.C. Gen. Stat. §§ 87-100 to -114. IPL answered, asserting the exceptions provided in the UDPA in N.C. Gen. Stat. § 87-106 barred recovery. Thereafter, IPL moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. In support of their summary judgment motion, IPL submitted Horrell's affidavit, which stated in part that all repair work was done with appropriate and reasonable care. In opposition, CT&T submitted an affidavit by Gregory Spejcher, a network engineer, which addressed the placement of the new pole and proposed an alternative which could avoid the danger presented by power lines dropping across a major roadway. The motion was granted by the trial court on 15 July 2002. CT&T appeals.    Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). “The rule is designed to permit penetration of an unfounded claim or defense in advance of trial and to allow summary disposition for either party when a fatal weakness in the claim or defense is exposed.” Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). The party moving for summary judgment has the burden of showing that there is no genuine issue as to any material fact. Dixie Chemical Corp. v. Edwards, 68 N.C. App. 714, 715, 315 S.E.2d 747, 749 (1984). “When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.” Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001).
    The UDPA guidelines specifically address “when excavation is necessary in the vicinity of a utility company's underground cable lines.” Lexington Telephone Co. v. Davidson Water, Inc., 122 N.C. App. 177, 179, 468 S.E.2d 66, 68 (1996).
        Utility companies normally lay their individual cables in substantially the same location as those of other utility companies. For a utility to undertake excavations, it must know the position of other cables or lines in an area. The Act outlines the framework that should be followed prior to excavating in an area where underground utility lines are present.

Id. Absent an applicable exception,         before commencing any excavations in highways, public spaces or in private easements of a utility owner, a person planning to excavate shall notify each utility owner having underground utilities located in the proposed area to be excavated . . . not less than two . . . working days prior to starting, of his intent to excavate.

N.C. Gen. Stat. § 87-102(a) (2001). North Carolina General Statute § 87-106 (2001) exempts certain excavations from notice. The following exceptions are relevant to the case at bar:
        (3) The replacement of a pole as long as the replacement pole is within three feet of the original pole and within the line of existing poles. This exception shall not apply to poles at highway intersections or at the     crossings of highways and permanently marked transmission underground utilities.
        (4) In the case of an emergency involving danger to life, health, or property requiring immediate correction, or in order to continue the operation of a major industrial plant, or in order to assure the continuity of utility services, excavations immediately required to repair or maintain the needed service may be made, without using explosives, if notice is given to the utility owner or association as soon as is reasonably possible . . . . Performance of emergency excavation shall not relieve the excavator of liability for damages.

N.C. Gen. Stat. § 87-106. We examine the affidavits presented to the trial court to determine whether genuine issues of material fact are presented concerning the applicability of these exceptions.
    Since it is uncontested IPL was replacing an existing pole, IPL would not be subject to the notice requirements of the UDPA if (1) “the replacement pole [was] within three feet of the original pole” and (2) the replacement pole was “within the line of existingpoles.” N.C. Gen. Stat. § 87-106(3). Horrell stated in his affidavit that the replacement pole was “immediately adjacent” to the original pole. Spejcher stated that had the replacement pole “been set at a point equidistant from the highway as the damaged pole, no trauma to [CT&T's] facilities would have occurred.” Neither statement provides guidance as to whether the replacement pole was “within the line of existing poles” as required by the exception; therefore, the affidavits fail to resolve genuine issues of material fact concerning the applicability of N.C. Gen. Stat. § 87-106(3), and the trial court could not grant summary judgment on this basis.
    The UDPA also excuses an excavator from providing notice when the situation presents an emergency. Horrell stated in his affidavit that the original pole was continuing to crack and risked “dropping power lines down across Honeycutt Road, which is a major roadway on Fort Bragg.” CT&T contends there is a genuine issue of material fact as to whether the cracked pole presented an emergency. Spejcher's affidavit stated “traffic could have been re-routed while utility location was performed prior to digging” which would have “prevent[ed] the endangerment of the traveling public . . . .” Considering the evidence contained in the record in the light most favorable to CT&T, we cannot say as a matter of law that the surrounding circumstances constituted an emergency.     Assuming arguendo an emergency was presented, the emergency exception merely relieves the excavator of the notice requirements of the UDPA but does not “relieve the excavator of liability fordamages.” N.C. Gen. Stat. § 87-106(4). “Negligence claims are rarely susceptible of summary adjudication, and should ordinarily be resolved by trial of the issues.” Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983). In the instant case, Horrell stated the work was done with “great care” and in a “workmanlike manner.” Nonetheless, a portion of the underground conduit was damaged by the auger. Viewing the circumstances in the light most favorable to CT&T, whether IPL may be held liable for damages associated with the work performed in placing the new pole presents a genuine issue of material fact. For the reasons stated, we reverse the trial court's granting of summary judgment and remand for further proceedings.
    Reversed and remanded.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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